Chattisgarh High Court
Ramlal vs Bulaki And Ors on 14 June, 2022
Page 1 of 10
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
SA No. 253 of 2012
Reserved on : 23.03.2022
Delivered on : 14.06.2022
Ramlal, S/o Jagram, Caste- Rajwar, Aged About 50 Years,
Village- Khopa, P.S.- Jainagar, Tahsil- Surajpur, District- Surguja
(Present District Surajpur) (C.G.)
---- Appellant
Versus
1. Bulaki, W/o Batau, D/o Late Kanhai, Aged About 55 Years,
Caste- Rajwar, R/o Village- Kevtali, P.O- Bhaiyathan, Tahsil-
Surajpur, District- Surguja (Present District Surajpur) (C.G.)
2. Nanh, W/o Moti, D/o Late Kanhair, Aged About 53 Years, Village-
Pidha, P.S. & Tahsil- Surajpur, District- Surajpur (Present District-
Surajpur) (C.G.)
3. Duhan, S/o Rambaksh, Aged About 43 Years, Caste- Rajwar.
4. Bodhan, S/o Rambaksh, Aged About 43 Years, Caste- Rajwar.
5. Jirodhan, S/o Rambaksh, Aged About 39 Years, Caste- Rajwar.
6. Devanti Bai, Wd/o Goverdhan, Aged About 60 Years, Caste-
Rajwar.
7. Ramkumar, S/o Late Goverdhan, Aged About 22 Years, Caste-
Rajwar.
8. Mankunwar, W/o Govind, Aged About 60 Years, Caste- Rajwar.
9. Smt. Hirman, D/o Govind, Aged About 49 Years, Caste- Rajwar.
10. Smt. Ati, D/o Govind, Aged About 50 Years, R/o Village Dumariya
P.S. & Tahsil- Surajpur, District- Surguja (Present District
Surajpur) (C.G.)
Respondents No. 3 to 8 are R/o Village- Khipa, Police- Jainagar,
Tahsil- Surajpur, Surguja (Present District Surajpur) (C.G.)
Respondent No. 9 is R/o Village- Doyam @ Shyamnagar, Police
Station- Jainagar, Tahsil- Surajpur, District- Surguja (Present
District Surajpur) (C.G.)
11. State of Chhattisgarh, Through: the Collector Surguja (C.G.)
---- Respondents
For Appellant : Mr. A.K. Prasad, Advocate.
For Respondents No. 3 to 5 & 7 : Mr. H.B. Agrawal, Sr. Advocate
with Ms. Preeti Yadav, Advocate.
For State/Respondent No. 11 : Mr. Sanjeev Kumar Agrawal, P.L.
Hon'ble Shri Justice Narendra Kumar Vyas
C.A.V. JUDGMENT
1. The second appeal has been filed by the appellant/plaintiff under
Section 100 of the C.P.C. against judgment and decree dated
12.07.2010 passed by First Additional District Judge, Surajpur,
District- Surguja (C.G.) in Civil Appeal No. 55A/2011 (Ramlal Vs.
Bulaki & others) affirming the judgment and decree dated
12.07.2010 passed by Second Civil Judge Class-II, Surajpur,
District- Surguja (C.G.) in Civil Suit No. 192A/2008.
2. For the sake of convenience, the parties shall be referred to in
terms of their status in Civil Suit No. 192A/2008 which was filed
for declaration of title and for grant of permanent injunction.
3. This second appeal has been admitted for hearing by this Court
vide order dated 28.06.2021 on the following substantial
question of law:-
"Whether both the Courts below were justified in
holding that plaintiff has failed to prove Will
(Ex.P/1) dated 14.04.1973, executed by Jholi by
recording a finding which is perverse to the
record?"
4. The brief facts, as reflected from the plaint averment, are that the
plaintiff has filed a civil suit for declaration of title and permanent
injunction of suit property mentioned at Schedule-A of the plaint
area admeasuring 15.08 acres situated at Village- Khopa,
Patawari Halka No. 23, Revenue Circle- Bhatgaon, Tahsil-
Surajpur, District- Surguja (M.P.) (now C.G.) on 06.05.1994
mainly contending that the parties are Hindu, governed by Hindu
law and genealogy describing the relation between the plaintiff
and defendants has also been mentioned in the plaint. It has
been further contended that as per survey settlement, the suit
land was recorded in the name of the plaintiff's grandfather
namely Late Ganesh, Late Jholi, Late Kanhai & Late Rodi, they
all are real brothers. After survey settlement, they have
partitioned the property and they are in possession of their
respective share, which they have received in the partition. It has
been further contended that Jholi was issue-less, as such, the
plaintiff became adopted son of Jholi and he was looking after
him. Due to care and love and affection, he has executed a Will
on 14.04.1973 in favour of the plaintiff, since then he was
inheriting the property peacefully. After death of Kanhai,
defendants No. 1 & 2 have recorded their names in the revenue
record and filed an application before the Naib Tahsildar,
Bhatgaon for mutation. Accordingly, the suit property was divided
into one half share. Defendants No. 1 & 2 after obtaining share
have sold some part of property to respondents No. 4 to 6, which
has been mentioned as Schedule-B of the plaint through
registered sale-deed on 02.02.1994 for Rs. 52,000/-. As such,
the sale-deed executed by defendants No. 1 & 2 are null and
void.
5. It has been further contended that no intimation with regard to
the partition proceeding was given to the plaintiff and no
opportunity of hearing was provided to the plaintiff by the Naib
Tahsildar to make his defence, as such, the partition proceeding
conducted by Naib Tahsildar is illegal. Defendants No. 1 & 2 on
the basis of partition and after sale of the property mentioned at
Schedule- B of the plaint, are making an attempt to disposses
the plaintiff from the suit property, which has necessitated the
plaintiff to file suit for declaration of title and for grant of
permanent injunction. On above factual foundation, it has been
prayed that the plaintiff may be declared title holder of ¼ share
of the property inherited by Late Jholi as mentioned at Schedule-
C of the plaint. The defendants may be restrained from
interfering in the peaceful possession of the plaintiff over the
property mentioned Schedule- C of the plaint.
6. Defendants No. 1 to 3 have not filed written statement.
Defendants No. 4 to 7 have filed written statement denying the
allegations made in the plaint mainly contending that Late Jholi
has never adopted the plaintiff as his son. It has been further
contended that the property mentioned at Schedule-A of the
plaint was never subject matter of the partition, Jholi and Rodi
died issue-less, as such, Ganesh and Kanhai became owner of
the property mentioned at Schedule-A of the plaint. After death
of Ganesh and Kanhai, the property was jointly inherited by their
successors. To avoid further dispute, defendant No. 1 moved an
application before the Tahsildar for partition, which was ordered
in the year 1991. It has been further contended that defendants
No. 1 & 2 have recorded their names after due process of law
and have sold the property to defendants No. 4 to 6 through
registered sale-deed on 02.02.1994 and they are the bonafide
purchasers, as such, the plaintiff has no right over the property
mentioned at Schedule-B of the plaint. It has been further
contended that Late Jholi has not received any property in the
partition as during his lifetime, no partition has been taken place.
The property mentioned at Schedule-C of the plaint, is
hypothetical and imaginary.
7. It has been further contended that wife, daughter and son of
Govind namely Mankunwar, Smt. Hirman & Smt. Ati respectively
are the main contesting party, but they have not been arrayed as
party to the case, therefore, the suit is not maintainable and the
same is liable to be rejected and would pray that the suit filed by
the plaintiff may kindly allowed.
8. Defendants No. 12 to 14 have filed their separate written
statement and supported the case of the plaintiff mainly
contending that they have not given opportunity of hearing
before the Naib Tahsildar during partition proceedings, therefore,
the order of partition is bad-in-law and void ab initio. The
defendants have further prayed that the plaintiff is entitled to get
share of Jholi being adopted son and he is entitled to get
declaration as sought in the plaint.
9. On pleadings of the parties, learned trial Court has framed as
many as eight issues. Issue No. 1 & 3 are relevant for
adjudication of the case, therefore, they are being extracted
below:- (1) Whether the plaintiff was adopted son of Jholi? (2)
Whether the Will dated 14.04.1994 executed in favour of the
plaintiff is forged and fabricated?
10. The plaintiff to substantiate his case, has examined himself as
PW-1, Madhuram (PW-2) & Tilakram (PW-3) and exhibited
document of adoption dated 14.04.1973 (Ex. P/1). The suit was
filed on 06.05.1994 and the trial Court has given ample
opportunity to the plaintiff to adduce evidence. Despite this, the
plaintiff failed to examine other witnesses except PW-1 to PW-3
and on 15.02.2010, the learned trial Court has closed the right of
the plaintiff to lead evidence. The defendant examined one
witness namely Duhan (DW-1) and exhibited document order
dated 30.11.1991 passed by Tahsidar, Bhagtaon (Ex. D/1), sale-
deed dated 02.02.1994 (Ex. D/2), map (Ex. D/3), B-1 (Ex. D/4) &
Khasra (Ex. D/5). The defendant has also examined by way of
affidavit of the witnesses namely Tilakram, but he was not
subjected to cross-examination, therefore, the learned trial Court
has rightly not considered the same while deciding the suit.
11. Learned trial Court after appreciating the evidence, material on
record, has dismissed the suit. Learned trial Court has dismissed
the suit by recording finding that there are suspicious
circumstances with regard to execution of Will and the attesting
witness Tilakram in his cross-examination has admitted that
Madhu has got signature in the Will after starting of the civil suit
and he is not aware of the contents of the Will. The witness has
denied the existence of Will, against that the plaintiff has
preferred first appeal before the First Appellate Court i.e.
Additional District Judge, Surajpur which has also been
dismissed by recording finding that the attesting witness should
have made a statement specifically before the learned trial Court
that the executant of the Will has put signature before him,
whereas in the present case, no such evidence was brought on
record and the learned trial Court has also recorded finding that
the attesting witness has denied the existence of Will and
thereafter, no other attesting witnesses have been examined by
the plaintiff to prove the Will. Thus, the Will has not been proved
as per the law, accordingly, dismissed the appeal. Against that,
the instant second appeal has been filed by the plaintiff, which
has been admitted by this Court framing the substantial question
of law as mentioned above.
12. Learned counsel for the appellant would submit that the plaintiff
has duly proved that he was adopted by Late Jholi. The partition
was taken place among the brothers of Late Jholi. From the
evidence of witnesses, the execution of Will was proved in
accordance with law and there is no irregularity or illegality in
proving the Will. He would further submit that the title of
document (Ex.P/1) is not important, its contents have to be seen
and according to the contents the document (Ex.P/1) is a Will
executed by Late Jholi. He would further submit that the property
of Jholi is self-acquired property as he has received the same in
a partition, therefore, he has rightly executed Will in favour of the
plaintiff and testator has a right to execute Will of self-acquired
property in any manner. He would further submit that the plaintiff
has duly proved the due execution and attestation of Will as per
Section 63 (c) of the Indian Succession Act and Section 68 of
the Indian Evidence Act. He would further submit that from the
evidence adduced by the parties, it is apparent that the property
was partitioned among the brothers and Late Jholi was having
separate share in the property which he has succeeded in his
lifetime and after the death it was succeeded by Ramlal,
however, the Court below have given a perverse finding, as
such, the finding recorded by the learned trial Court affirmed by
the First Appellate Court is liable to be set aside and the
substantial question of law framed by this Court may be
answered in favour of the plaintiff.
13. On the other hand, learned Senior Advocate for respondents No.
3 to 5 & 7 would submit that the judgment and decree passed by
the learned trial Court affirmed by the learned First Appellate
Court, is legal and justified as the plaintiff is unable to plead and
prove the Will as per the requirement under Section 63 (c) of the
Indian Succession Act and Section 68 of the Indian Evidence Act
and would pray for dismissal of the appeal.
14. I have heard learned counsel for the parties and perused the
documents placed on record with utmost satisfaction.
15. From the above stated factual matrix two issues have to be
determined by this Court- whether the Will has been proved as
per the provisions of Section 68 of the Evidence Act and Section
63 (c) of the Indian Succession Act?
16. For better understanding this issue, it is expedient for this Court
to extract the provisions of Section 68 of the Evidence Act and
Section 63 (c) of the Indian Succession Act which are as under:-
"Section 68 of the Evidence Act 1872- Proof of
execution of document required by law to be
attested- If a document is required by law to be
attested, it shall not be used as evidence until one
attesting witness at least has been called for the
purpose of proving its execution, if there be an
attesting witness alive, and subject to the process
of the Court and capable of giving evidence.
Provided that it shall be necessary to call an
attesting witness in proof of the execution of any
document, not being a Will, which has been
registered in accordance with the provisions of the
Indian Registration Act, 1908 (16 of 1908), unless
its execution by the person by whom it purports to
have been executed is specifically denied.
Section 63 (c) of the Indian Succession Act,
1925- The Will shall be attested by two or more
witnesses, each of whom has seen the testator
sign or affix his mark to the Will or has seen some
other person sign the Will, in the presence and by
the direction of the testator, or has received from
the testator a personal acknowldgment of his
signature or mark, or the signature of such other
person, and each of the witnesses shall sign the
Will in the presence of the testator, but it shall not
be necessary that more than one witnesses be
present at the same time, and no particular from of
attestation shall be necessary."
17. The relevant portion of the Will dated 14.04.1973 (Ex. P/1) is
extracted below:-
xksni=
"eSa >ksyh vkRet iq[ku tkfr jtokj mez 60 o"kZ lk- [kksaik
rglhy lwjtiqj ftyk ljxqtk dk fuoklh gwa eSa fu%larku gwa eSa
viuh rFkk viuh [ksrh ckM+h dks lEHkkyus ds fy;s vius ukrh
jkeyky vkRet txjke jtokj lk- [kksaik ds fuoklh dks vius
HkkbZ ls lykg djds xksn iq= ds :i esa vius ikl cpiu ls j[k
fy;k Fkk vkSj eSa vius ukrh ds lsok [kq'kken ls cgqr [kq'k gwa eSa
dkQh o`) gks x;k gwa o`) gksus ls vc eSa vDlj chekj jgk djrk
gwaA esjh vc vfUre bPNk ;s gS fd eSa vius thrs th vius fgLls
fd Hkwfe ftldk [kkr ,d esa gS ysfdu tehu dks vkilh caVokjk
djds dCtk gekjs lHkh HkkbZ yksx dk vyx&vyx gSA eSa vius
bPNk ls vius fgLls dh Hkwfe dks LosPNk ls vius ukrh jkeyky
vk- txjke jtokj lk- [kksaik dks ;g vf/kdkj ns jgk gwa fd esjs
ejus ds ckn esjs fgLls dh Hkwfe ,oa dCts dkLr o gSfl;r esjs
xksn iq= ds crkSj djrk jgs vkSj [kkrk vyx gksrs le; esjs fgLls
dh Hkwfe dks esjk ukrh izkIr djs vkSj ljdkjh dkxt ij esjs Lfkku
ij esjs ukrh dk uke oS/k okfj'k gksus ls bldk uke ntZ fd;k
tkosA esjs fgLls dh Hkwfe ij esjs fdlh Hkh fj'rsnkj dk dksbZ
vf/kdkj u gksxkA ,d eku esjs fgLls dh Hkwfe dk ikus dk
vf/kdkj esjs ukrh dks gksxk eSa dkxt ;s xokgksa ds lkeus ?kj ij
fy[kokdj fy[kokus ds ckn i<+okdj vPNs njks ls le>dj lgh
ikus ij vaxqBk yxok fn;k fd le; ij dkeA"
18. Learned counsel for the appellant/plaintiff has filed written
submission reiterating the facts and would submit that the Will
has been duly proved as per the provisions of Section 68 of the
Indian Evidence Act and Section 63 (c) of the Succession Act.
He would further submit that from the evidence adduced by the
parties, it is apparent that the property was partitioned amongst
the brothers and Late Jholi has separate share in the property,
which he has succeeded in his lifetime, after death, he was
succeeded by Ramlal/plaintiff, but his fact has been ignored by
the learned courts below, as such, it is a perverse finding and
would pray for allowing the appeal.
19. On the other hand, learned Senior Advocate for the defendants
would submit that the finding recorded by the learned trial Court
is legal justified and does not warrant any interference by this
Court. The substantial question of law framed by this Court
deserves to be answered in negative. He would rely upon the
judgment rendered by Hon'ble the Supreme Court in Kavita
Kanwar Vs. Mrs. Pamela Mehta1 & Murthy Vs. C.
Saradambal2.
20. Learned Senior counsel for the defendants would submit that the
as per Section 63 of the Act, 1925, it is required that the attesting
witness should have seen the testator sign or affix his mark to
the will or has seen some other person signed the Will, in the
presence and by the direction of the testator, but from the
evidence on record, it is established that the attesting witness
has not seen the testator putting his sign which is non-
compliance of the provisions of the Section 63(3) of the Act,
1925 and on the contrary, the attesting witness has denied the
existence of the Will, as such, suspicious circumstances are
available and the clouds have not been cleared by the plaintiff by
recording evidence. He would refer the judgment rendered by
Hon'ble the Supreme Court in Raj Kumari Vs. Surinder Pal
Sharma3.
21. Now coming to the fact of the case, it is quite clear that when the
Will/Godpatra was executed on 14.04.1973 and the attesting
witness has denied the existence of the Will and no other
attesting witness has been examined. Learned First Appellate
Court after extensively examined the material, evidence on
record, has given a finding that the plaintiff has also not prove
whether the testator of the Will was in sound and mental position
and was able to understand the contents of the Will or not. Even
the learned First Appellate Court has also recorded a finding that
even the plaintiff witness is not able to prove the fact that which
property has been given to Jholi on partition. Learned First
Appellate Court has also recorded the finding that the appellant-
Ramlal who is beneficiary of the Will has also signed the Will,
which create suspicious circumstances with regard to the Will.
This finding is neither perverse nor contrary to the record, which
warrants interference by this Court.
1 2020 SCC Online SC 464
2 Civil Appeal No. 4270 of 2010 (Decided on 10.12.2021)
3 2019 SCC Online SC 1747
22. In light of the aforesaid discussion, considering the law on the
subject, it is crystal clear that the validity of Will (Ex.P-1) is not
proved, in accordance with the provisions of the law and
suspicious circumstances are available on record which have
not been cleared by the plaintiff by placing materials on record.
Considering this aspect of the matter, the learned trial Court has
dismissed the suit and the First Appellate Court has also
dismissed the appeal, as such, the substantial question of law
framed by this Court deserves to be answered in negative
against the appellant/plaintiff and in favour of the defendants.
23. Accordingly, the appeal filed by the appellant/plaintiff is liable to
be and is hereby dismissed. No order as to costs.
24. A decree be drawn-up accordingly.
Sd/-
(Narendra Kumar Vyas)
Judge
Arun
